Discuss the rights of wife to claim dower if it has not been paid by her husband.

In Muslim religion, dower is that amount of money or property which is agreed to be paid by husband to his wife at the time of marriage in the consideration of marriage. It is a personal allowance which is given to the wife only just to protect her from destitution and vagrancy. In Muslim religion, husband has vast powers to give divorce to his wife and it protects the wife from the arbitrary exercise of power of divorce by the husband.

According to Muslim law, husband is bound to give dower to his wife. Now the question arises, “if a husband fails to give dower to his wife then whether wife has any right or remedy to compel the husband to pay the amount.”

According to Muslim Law, in every circumstance wife is entitled to get the dower from her husband and Muslim law provides various rights and remedies to the wife to compel her husband to pay the dower and these rights are given below:-

• Refusal to cohabit:- According to Muslim law, if at the time of solemnization of marriage, a prompt dower has been fixed by the parties and on the demand of this dower by wife, husband fails to pay the amount, then if a marriage has not been consummated, the wife has right to refuse to have matrimonial intercourse. She has right to refuse to cohabit with her husband so long as the prompt dower is not paid. But if marriage between the parties has been consummated, then she can file a suit to recover the dower and if she refuses to have the matrimonial intercourse than husband can file a suit for the restitution of conjugal rights and in such a situation, the court will grant conditional decree and it will pronounce the decree conditional on the payment of dower.

• Right to dower as a debt:- According to Muslim religion, dower is an unsecured debt and wife is entitled along with other creditors to have it satisfied on the death of the husband out of his estate. If husband is alive, the wife can recover it by instituting a suit against him but after his death the widow can claim the amount of dower by filing a suit against the heirs of her husband.

In the case of Kapoor Chand vs Kadarussia [(1950) SCR 747], it was held that, “widow being like any other creditor of husband cannot claim priority over other creditors for her dower and if she files suit against heirs of her husband for that dower, heirs are not personally liable for the dower- debt. They are liable to the extent to which and in the proportion in which they have inherited the property of the deceased husband.”

• Right to retain possession in lieu of unpaid dower:- According to Muslim Religion, if the amount of dower has not been paid by husband and without paying that amount he dies, then being a creditor, the wife has right to file a suit against his a heirs to claim the dower amount. But if at the time of dissolution of marriage by death, the wife has possession of whole or any part of estate of a husband then she has the right to retain that possession until the amount of dower has not been paid to her by the legal heirs of her husband.
She can retain the possession only if she has obtained the possession lawfully, without any force or fraud and with the consent of her husband. She must have actual possession of the property.

According to Muslim law, she can retain the possession of that property and can get the rent or other income arises from that property but she cannot alienate that property.

In the case of Hamira Bibi vs. Zubidabibi [(1916) 43 I.A. 294], it was held that, “ the “right of retention” is not exactly a lien, nor a mortgage. It does not give the widow any title to the property, thus, she cannot alienate. However, it does not bar her suit for the recovery of her dower- debt. During the period of possession, the widow is liable to render full account of all the income and profits.

These are the rights and remedies which are available to the wife to compel her husband to pay the dower amount if it has not been paid by him to his wife.

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